SENEGAL AMENDS ITS CONSTITUTION TO PROSECUTE HABRE

UNCLAS SECTION 01 OF 02 DAKAR 000448

SIPDIS

SIPDIS
SENSITIVE

DEPT FOR AF/W, AF/RSA, DRL AND INR/AA

E.O. 12958: N/A
TAGS: PGOV PREL PINS KDEM SG
SUBJECT: SENEGAL AMENDS ITS CONSTITUTION TO PROSECUTE HABRE


1. (SBU) Summary: On April 8, the Senegalese National Assembly
amended article 9 of Senegal's Constitution to enable local courts
to prosecute former Chadian President Hissene Habre. The debate was
passionate and took three-and-a-half hours. The overwhelming
majority of President Abdoulaye Wad's party, more than eighty
members, voted in favor of the law arguing that Africa has grown and
must not let Europe prosecute its leaders. Eight members including
two senior members from the president's camp rebelled and voted
against the law on the ground that allowing international criminal
law to be retroactive in Senegal sets a dangerous precedent. END
SUMMARY.

GOS's rationale for the Law
--------------


2. (SBU) The Minister of Justice defending the bill noted that the
amendment adds a new paragraph to article 9 of the Constitution
which used to read "No one shall be condemned for an act which did
not constitute a criminal offence at the time it was committed."
The amendment adds "However, the provision of the preceding
paragraph, shall not prejudice the trial, judgment, and condemnation
of any person for any act or omission which, at the time it was
committed was criminal according to international law, especially
acts of genocide, crimes against humanity and war crimes."

Fulfilling International Commitments
--------------


3. (SBU) In fact, this amendment is a modified version of Article
15 of the UN Covenant on Civil and Political Rights of 1948.
Believing that idea of a "general principles of law recognized by
the Community of nations" was too broad for Senegal, experts at the
Ministry of Justice changed the language to "international law" and
defined more narrowly the crimes under the scope of the amendment
limiting them to genocide, crimes against humanity, and war crimes.
Prior to this amendment, Senegalese judges used article 9 of the
Constitution to rule that Senegal could not prosecute Habre and
lacked criminal procedures to that effect. This, as recognized by
the GOS, violated article 27 of the 1969 Vienna Convention on the
Law of Treaties which forbids a state party to invoke provisions of
its internal laws "as justification for its failure to perform a
treaty."

Africa Must Prove its Legal Maturity
--------------


4. (SBU) During the heated debate, some deputies questioned who or
which state could legitimately prosecute former African dictators
accused of genocide or crimes against humanity. There was a
unanimous view, echoed by the Minister of Justice, that the
"toubabs" (white Europeans) did not have such legitimacy because
many of their colonial crimes remain unpunished and they all
congratulated President Wade for having refused to extradite Habre
to Belgium. The Deputies opined that Western powers only respected
international law when it conforms to their interests. However,
leading members of the Assembly cautioned that international law
should not be confused with international relations and Africa
should not condone the behavior of its dictators. The leader of the
majority noted that this was an opportunity to prove that Africa has
competent judges and that its criminals could be prosecuted
according to international standards.

Too Many Amendments
--------------


5. (SBU) Some members complained that the government was
trivializing the Constitution with constant amendments. They
deplored that the amendment they were examining was undertaken under
pressure from Western NGOs such as Human Rights Watch. Deputy
Elhadj Diouf, one of Habre's many attorneys, noted that Senegal was
the only country on Earth to place in its Constitution a provision
allowing international criminal law to be retroactive. Though he
belongs to Wade's party, Diouf did not hesitate to claim that the
amendment in question was being forced upon Senegal and added that
the true criminal is not Habre but the current Chadian President
Idriss Deby who, as the former head of Secret Services, carried out
the executions that Habre is alleged to have ordered. He noted that
Habre faced many accusations with little supporting evidence.

Comment
--------------


6. (SBU) While it is true that the National Assembly typically
rubberstamps the government's draft laws, this case proved to be so
controversial that a first draft was withdrawn at the committee
level. The deputies who first rejected the idea of having
international criminal law be retroactive in Senegal compromised
with the Executive branch agreeing to strictly limit any amendment
to genocide, crimes against humanity, and war crimes. With this
amendment in place, the final legal obstacle to try Habre has been

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removed. However, given the former dictator's network of supporters
in political and religious circles, it remains to be seen if the
case will not be purposefully dragged out to prolong the two decades
of immunity he has enjoyed in Senegal.
SMITH